United States v. Gregory Osewalt , 470 F. App'x 373 ( 2012 )

Case: 11-60678 Document: 00511847837 Page: 1 Date Filed: 05/08/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 8, 2012
No. 11-60678
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
GREGORY EUGENE OSEWALT,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 2:09-CR-131-1
Before DAVIS, DeMOSS, and HAYNES, Circuit Judges.
PER CURIAM:*
Gregory Eugene Osewalt was convicted of possession with intent to
distribute more than five kilograms of cocaine. See 21 U.S.C. § 841. After
serving his sentence, he was released to supervision. On February 16, 2010, his
supervised release was revoked for violations that included use of illicit
substances. He was sentenced to six months of imprisonment and two years of
supervised release. After serving his six month sentence, he was again released
on May 10, 2010 and began his two-year term of supervised release. On April
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 11-60678 Document: 00511847837 Page: 2 Date Filed: 05/08/2012
No. 11-60678
26, 2011, his probation officer filed a petition to revoke his supervised release
based on an arrest for DUI, no proof of insurance, and careless driving;
unauthorized travel to another state; and possession of a dangerous weapon, i.e.,
two knives. The district court revoked Osewalt’s supervision and sentenced him
to 24 months of imprisonment and 24 months of supervised release. Osewalt
now appeals his 24-month term of imprisonment. He argues that his sentence
is unreasonable in light of the recommended guidelines sentencing range of 4 to
10 months and that the district court erred in relying on his alleged continued
drug use when his violations did not include drug charges.
At the revocation hearing, the district court engaged in a colloquy with
Osewalt during which he admitted that he might benefit from substance abuse
counseling and treatment. In explaining her reasons for the upward variance,
the district judge cited “a continued pattern of illegal drug use and/or total
disregard for the law.” Although use of illegal drugs was not one of the
violations for which his supervised release was revoked this time, possession and
use were violations on the first revocation, and the underlying conviction was for
possession with intent to distribute cocaine. In addition, Osewalt’s DUI violation
indicates that he still has issues with substance abuse or dependence. Osewalt’s
numerous violations of the conditions of supervised release (all within one year
of his release), which led to two revocations and two prison sentences (the first
of which did not deter his illegal conduct), also establish total disregard for the
law, the alternative basis given by the district court for the variance. Thus, the
district court did not err in explaining its reasons for the variance. Nor did it
abuse its discretion in imposing a 24-month sentence, given that the prior
revocation sentence of six months did not sufficiently deter Osewalt from
violating, within one year of his release, not one but several of the conditions of
supervision.
2
Case: 11-60678 Document: 00511847837 Page: 3 Date Filed: 05/08/2012
No. 11-60678
Osewalt has not shown that his sentence is unreasonable, much less
plainly unreasonable. See United States v. Miller, 634 F.3d 841, 843 (5th Cir.
2011); United States v. Rosogie, 21 F.3d 632, 634 (5th Cir. 1994).
AFFIRMED.
3